Citation NR: 9712695
Decision Date: 04/11/97 Archive Date: 04/18/97
DOCKET NO. 94-25 863 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUE
Whether the appellant is basically eligible for Department of
Veterans Affairs benefits.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
P. J. Somelofske, Counsel
INTRODUCTION
This matter came before the Board of Veterans’ Appeals
(Board) on appeal from a March 1994 determination of the
Department of Veterans Affairs (VA), Manila, Philippines,
Regional Office (RO), that denied eligibility for VA benefits
on the basis that the appellant had not submitted acceptable
proof to establish that he had service with the Philippine
Commonwealth Army or recognized guerrillas in the service of
the Armed Forces of the United States. The appellant asserts
that he has recognized military service; the classification
of the appellant’s service, therefore, is in controversy.
On his VA Form 9, Appeal to Board of Veterans’ Appeals, the
appellant indicated that he desired a hearing before a Member
of the Board at the RO. In November 1995, the appellant
testified at a hearing at the RO. At that hearing, he
submitted a signed statement indicating that he no longer
desired a hearing before a Member of the Board. A Hearing
Officer’s decision, dated in December 1995, confirmed the
denial of eligibility for VA benefits.
Thereafter, in March 1996, this case was remanded to the RO
for further development. Subsequent supplemental statements
of the case, dated in September 1996, November 1996, and
January 1997, confirmed the denial of eligibility for VA
benefits.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends, in essence, that the RO committed
error by denying eligibility for VA benefits. The appellant
asserts that he is eligible for VA benefits since he had
active military service, to include recognized guerrilla
service from 1942 to 1945. In addition, he states that he
was a prisoner-of-war from July 1943 to December 1943. He
maintains that he is a “veteran” and is entitled to VA
benefits by reason of his veteran status. It is argued that
Philippine military documents and affidavits from service
comrades submitted by the appellant verify his service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the appellant’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the law is dispositive with
respect to the appellant’s service and that the appellant’s
claim for VA benefits is denied.
FINDING OF FACT
The service department has certified that the appellant did
not have service as a member of the Philippine Commonwealth
Army, including the recognized guerrillas, in the service
with the Armed Forces of the United States.
CONCLUSION OF LAW
The appellant does not meet the basic service eligibility
requirements so as to be eligible for VA benefits. 38
U.S.C.A. §§ 101, 107 (West 1991 & Supp. 1996); 38 C.F.R.
§§ 3.1, 3.8, 3.203 (1995).
REASONS AND BASES FOR FINDING AND CONCLUSION
The appellant claims that his military service meets the
requirements for eligibility for VA benefits on the basis
that he is a “veteran.” The appellant contends that he
currently has numerous disabilities, including hepatitis,
hemorrhoids, and weak lungs, and that these disorders were
incurred in or aggravated by his service. The provisions of
38 U.S.C.A. §§ 1110 (West 1991 & Supp. 1996), pertaining to
disability compensation benefits require that the person to
receive benefits shall be a veteran. The term “veteran”
means a person who served in the active military, naval, or
air service, and who was discharged or released therefrom
under conditions other than dishonorable. 38 U.S.C.A. §
101(2) (West 1991 & Supp. 1996); 38 C.F.R. § 3.1(d) (1996).
Service before July 1, 1946, in the organized military forces
of the Government of the Commonwealth of the Philippines,
while such forces were in the service of the Armed Forces of
the United States pursuant to the military order of the
President dated July 26, 1941, including among such military
forces organized guerrilla forces under commanders appointed,
designated, or subsequently recognized by the Commander in
Chief, Southwest Pacific Area, or other competent authority
in the Army of the United States, shall not be deemed to have
been active military, naval, or air service for the purposes
of any law of the United States conferring rights,
privileges, or benefits upon any person by reason of the
service of such person or the service of any other person in
the Armed Forces, except for specified benefits including
disability compensation benefits authorized by chapter 11,
title 38, United States Code. 38 U.S.C.A. § 107(a) (West
1991 & Supp. 1996); 38 C.F.R. § 3.8(c), (d) (1996). Service
in the Commonwealth Army of the Philippines after July 1,
1946, likewise, is not deemed to be active military, naval,
or air service. 38 C.F.R. § 3.8(c).
Service in the Philippine Scouts under section 14 of Public
Law 190, 79th Congress (the “Armed Forces Voluntary
Recruitment Act of 1945”), shall not be deemed to have been
active military, naval or air service, except for benefits
under certain contracts of National Service Life Insurance;
compensation for service-connected disability or death; and
dependency or indemnity compensation for service-connected
death. All enlistments and reenlistments of Philippine
Scouts in the Regular Army between October 6, 1945, and June
30, 1947, inclusive, were made under the authority of Public
Law 190 as it constituted the sole authority for such
enlistments during that period. 38 U.S.C.A. § 107(b) (West
1991 & Supp. 1996); 38 C.F.R. § 3.8 (1996).
For the purpose of establishing entitlement to pension,
compensation, dependency and indemnity compensation or burial
benefits, the VA may accept evidence of service submitted by
a claimant, such as a DD Form 214, Certificate of Release or
Discharge from Active Duty, or original Certificate of
Discharge, without verification from the appropriate service
department if the evidence meets the following conditions:
(1) the evidence is a document issued by the service
department; a copy of an original document is acceptable if
the copy was issued by the service department or if the copy
was issued by a public custodian of records, who certifies
that it is a true and exact copy of the document in the
custodian’s custody; (2) the document contains needed
information as to length, time and character of service; and
(3) in the opinion of the VA the document is genuine and the
information contained in it is accurate. 38 C.F.R. §
3.203(a) (1996). With respect to documents submitted to
establish a creditable period of wartime service for pension
entitlement, a document may be accepted without verification
if the document shows: (1) service of four months or more; or
(2) discharge for disability incurred in the line of duty; or
(3) ninety days creditable service based on records from the
service department such as hospitalization for ninety days
for a line of duty disability. 38 C.F.R. § 3.203(b) (1996).
When the claimant does not submit evidence of service, or the
evidence submitted does not meet the requirements discussed
above, the VA shall request verification of service from the
service department. 38 C.F.R. § 3.203(c) (1996).
In support of his claim for benefits, the appellant submitted
an Honorable Discharge Certificate from the People’s Anti-
Japanese Army, dated in October 1991, indicating the
appellant had service from September 1942 to December 1945.
In a response to the RO’s request for verification of the
appellant’s service, the United States Army Reserve Personnel
Center, in February 1994, certified that the appellant did
not have service as a member of the Philippine Commonwealth
Army, including the recognized guerrillas, in the service of
the United States Armed Forces. Thereafter, in March 1994,
the appellant’s claim for VA benefits was denied on the basis
that the appellant had not submitted acceptable proof to
establish that he had the requisite service for eligibility
for VA benefits.
Thereafter, in January 1995, the United States Army Reserve
Personnel Center, in response to the RO’s request for
verification of the appellant’s service, again certified that
the appellant did not have service as a member of the
Philippine Commonwealth Army, including the recognized
guerrillas, in the service of the United States Armed Forces.
In November 1995, the appellant testified at a hearing at the
RO. He stated that he served as a recognized guerrilla from
1942 to 1945, and had experienced many hardships in service.
Transcript p. 1. In addition, he testified that he was
imprisoned from July 1943 to December 1945. Tr., p. 1. At
this hearing, the appellant submitted a copy of a Philippine
Veteran Affairs Office, Statement of Service, dated in March
1979, reflecting guerrilla service from December 1942 to
September 1945. In December 1995, the Hearing Officer
continued the denial of eligibility for VA benefits.
In March 1996, this case was remanded to the RO for further
development, to include verifying the appellant’s service
under all names which the appellant claims to have had
recognized service.
Thereafter, the appellant submitted an affidavit from J.B.,
dated in 1987, indicating that the affiant knew the appellant
and knew that he was arrested by the Japanese and imprisoned
in the Japanese Garrison at Santa Cruz, Laguna, for more than
five months. The appellant also submitted an affidavit from
T.R.D., dated in November 1979, indicating that the affiant
knew the appellant in service, that the appellant was not
officially recognized in February 1945 by the Armed Forces of
the United States because his name was not carried or
included in the rosters of troops submitted, that the rosters
were incomplete, and that the appellant’s name was included
in a supplementary roster of troops which was not recognized
by the AFPAC, United States Army.
Thereafter, in July 1996, the United States Army Reserve
Personnel Center, in response to the RO’s request for
verification of the appellant’s service, certified that the
evidence submitted was insufficient to warrant a change in
the prior negative certification in January 1995. In
September 1996, the RO continued the denial of eligibility
for VA benefits.
In November 1996, the appellant submitted his own sworn
affidavit indicating that he served in World war II and that,
because of his activities, he was imprisoned in the garrison
in Santa Cruz, Laguna, for over five months. He stated that,
because he feared for his life, he had used an alias. In
November 1996, the RO again continued the denial of
eligibility for VA benefits.
Thereafter, the appellant submitted a June 1996 letter from
A.F.J., the Chief of the Placement and Training Division, to
the Office of the Adjutant General at Camp Emilio Aguinaldo,
Quezon City, requesting that an enclosed record pertaining to
the appeal of T.R.D., be included in the Philippines Archives
Collection. This record, dated in September 1987, lists
certain files that are in the custody of the Philippines
Archives Collection. This record also indicates that when
the United States Army Reserve Personnel Center transferred
the Philippines Archives Collection to the National Archives,
it retained custody of the personnel files of the individuals
who had served in various guerrilla forces. In January 1997,
the RO once again continued the denial of eligibility for VA
benefits.
The United States Court of Veterans Appeals (Court) has held
that findings by the United States service department
verifying a person’s service “are binding on the VA for
purposes of establishing service in the U.S. Armed Forces.”
Duro v. Derwinski, 2 Vet.App. 530, 532 (1992); see also
Dacoron v. Brown, 4 Vet.App. 115, 120 (1993). Because none
of the evidence submitted by the appellant is an official
document of a service department of the United States, the
evidence does not constitute valid evidence of service under
38 C.F.R. § 3.203(a). As the evidence submitted is
insufficient to prove qualifying service on the part of the
appellant, the VA is bound by the certification of the United
States Army Reserve Personnel Center showing the appellant
did not have service as a member of the Philippine
Commonwealth Army, including the recognized guerrillas, in
the service of the U.S. Armed Forces. Duro v. Derwinski, 2
Vet.App. 530, 532 (1992); see also Dacoron v. Brown, 4
Vet.App. 115, 120 (1993). It must be noted that the alias
under which the appellant claims to have served was provided
to the United States Army Reserve Personnel Center, and that
qualifying service could not be verified based on either the
alias or the appellant’s legal name. Accordingly, the Board
finds that the appellant did not have the requisite service
to qualify for VA disability compensation benefits and,
therefore, the appellant’s claim is denied. 38 U.S.C.A.
§ 107; Sabonis v. Brown, 6 Vet.App. 426, 430 (1994);
38 C.F.R. § 3.8. As the law, and not the evidence, is
dispositive on this issue, the appellant’s claim must be
denied because of lack of legal entitlement. Sabonis v.
Brown, 6 Vet.App. 426, 430 (1994).
ORDER
The appellant’s claim for entitlement to VA benefits is
denied.
JANE E. SHARP
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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